[Federal Register Volume 71, Number 17 (Thursday, January 26, 2006)]
[Rules and Regulations]
[Pages 4294-4297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-745]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AU04; 1018-AU09; 1018-AU13; 1018-AU28


Migratory Bird Hunting; Approval of Tungsten-Iron-Copper-Nickel, 
Iron-Tungsten-Nickel Alloy, Tungsten-Bronze (Additional Formulation), 
and Tungsten-Tin-Iron Shot Types as Nontoxic for Hunting Waterfowl and 
Coots; Availability of Environmental Assessments

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; availability of Final Environmental Assessment and 
Finding of No Significant Impact.

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SUMMARY: The U.S. Fish and Wildlife Service (we, us, or USFWS) approves 
four shot types or alloys for hunting waterfowl and coots and changes 
the listing of approved nontoxic shot types to reflect the cumulative 
approvals of nontoxic shot types and alloys. In addition, we approve 
alloys of several metals because we have approved the metals 
individually at or near 100% in nontoxic shot. We have prepared a Final 
Environmental Assessment and a Finding of No Significant Impact in 
support of this decision.

DATES: This rule takes effect on February 27, 2006.

ADDRESSES: The Final Environmental Assessments for the shot types and 
the associated Findings of No Significant Impact are available from the 
Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 
4501 North Fairfax Drive, Room 4091, Arlington, Virginia 22203-1610. 
You may call 703-358-1825 to request copies.
    The complete file for this rule is available, by appointment, 
during normal business hours at the same address. You may call 703-358-
1825 to make an appointment to view the files.

FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of 
Migratory Bird Management, 703-358-1714.

SUPPLEMENTARY INFORMATION:

Background

    The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-711) and 
the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712) implement 
migratory bird treaties between the United States and Great Britain for 
Canada (1916, amended), Mexico (1936, amended), Japan (1972, amended), 
and Russia (then the Soviet Union, 1978). These treaties protect 
certain migratory birds from take, except as permitted under the Acts. 
The Acts authorize the Secretary of the Interior to regulate take of 
migratory birds in the United States. Under this authority, the U.S. 
Fish and Wildlife Service controls the hunting of migratory game birds 
through regulations in 50 CFR part 20.
    Deposition of toxic shot and release of toxic shot components in 
waterfowl hunting locations are potentially harmful to many organisms. 
Research has shown that ingested spent lead shot causes significant 
mortality in migratory birds. Since the mid-1970s, we have sought to 
identify shot types that do not pose significant toxicity hazards to 
migratory birds or other wildlife. We addressed the issue of lead 
poisoning in waterfowl in an Environmental Impact Statement in 1976, 
and again in a 1986 supplemental EIS. The 1986 document provided the 
scientific justification for a ban on the use of lead shot and the 
subsequent approval of steel shot for hunting waterfowl and coots that 
began that year, with a complete ban of lead for waterfowl and coot 
hunting in 1991. We have continued to consider other potential 
candidates for approval as nontoxic shot. We are obligated to review 
applications for approval of alternative shot types as nontoxic for 
hunting waterfowl and coots.
    We received applications for approval of four shot types as 
nontoxic for hunting waterfowl and coots. Those shot types are:
    1. Tungsten-Iron-Copper-Nickel (TICN) shot, of 40-76 percent 
tungsten, 10-37 percent iron, 9-16 percent copper, and 5-7 percent 
nickel (70 FR 3180, January 21, 2005);
    2. Iron-Tungsten-Nickel (ITN) alloys composed of 20-70 percent 
tungsten, 10-40 percent nickel, and 10-70 percent iron (70 FR 22625, 
May 2, 2005);
    3. Tungsten-Bronze (TB) shot made of 60 percent tungsten, 35.1 
percent copper, 3.9 percent tin, and 1 percent iron (70 FR 22624, May 
2, 2005, Note: This formulation differs from the Tungsten-Bronze 
nontoxic shot formulation approved in 2004.); and
    4. Tungsten-Tin-Iron (TTI) shot composed of 58 percent tungsten, 38 
percent tin, and 4 percent iron (70 FR 32282, June 2, 2005).
    We reviewed the shot under the criteria in Tier 1 of the nontoxic 
shot approval procedures contained in 50 CFR 20.134 for permanent 
approval of shot as nontoxic for hunting waterfowl and coots. We amend 
50 CFR 20.21(j) to add the shot types to the list of those approved for 
waterfowl and coot hunting.
    On August 24, 2005, we published a proposed rule to approve the 
four shot types as nontoxic (70 FR 49541). The applications for the 
approval of the shot types included information on chemical 
characterization, production variability, use, expected production 
volume, toxicological effects, environmental fate and transport, and 
evaluation, and the proposed rule included this information, a 
comprehensive evaluation of the likely effects of each shot, and an 
assessment of the affected environment.
    The Director of the U.S. Fish and Wildlife Service has concluded 
that the spent shot material will not pose a significant danger to 
migratory birds or other wildlife or their habitats, and therefore 
approves the use of the four shot types as nontoxic for hunting 
waterfowl and coots.
    We received one comment in response to the proposed rule. However, 
the commenter raised no issues that caused us to reconsider our 
approval of the shot types as nontoxic.
    The metals in these shot types have already been approved in other 
nontoxic shot types. In considering approval of these shot types, we 
were particularly concerned about the solubility and bioavailability of 
the nickel and copper

[[Page 4295]]

in them. In addition, because tungsten, tin, and iron have already been 
approved at very high proportions of other nontoxic shot types with no 
known negative effects of the metals, we approve all alloys of these 
four metals.
    The data provided to us indicate that the shot types are nontoxic 
when ingested by waterfowl and should not pose a significant danger to 
migratory birds, other wildlife, or their habitats. We conclude that 
they raise no particular concerns about deposition in the environment 
or about ingestion by waterfowl or predators.
    The process for submission and evaluation of new shot types for 
approval as nontoxic is given at 50 CFR 20.134. The list of shot types 
approved as nontoxic for use in hunting migratory birds is provided in 
the table at 50 CFR 20.21(j). With this rule, we also propose to revise 
the listing of approved nontoxic shot types in Sec.  20.21(j) to 
include the cumulative approvals of the shot types considered in this 
rule with the other nontoxic shot types already in the table.
    Many hunters believe that some nontoxic shot types do not compare 
favorably to lead and that they may damage some shotgun barrels, and a 
small percentage of hunters have not complied with nontoxic shot 
regulations. Allowing use of additional nontoxic shot types may 
encourage greater hunter compliance and participation with nontoxic 
shot requirements and discourage the use of lead shot. The use of 
nontoxic shot for waterfowl hunting has increased in recent years 
(Anderson et al. 2000), but we believe that compliance will continue to 
increase with the availability and approval of other nontoxic shot 
types. Increased use of nontoxic shot will enhance protection of 
migratory waterfowl and their habitats. More important, however, is 
that the Fish and Wildlife Service is obligated to consider all 
complete nontoxic shot submissions.
    We also add a column to the table of approved shot types that lists 
the field testing device suitable for each shot type. The information 
in this column is strictly informational, not regulatory. Because these 
regulations are used by both waterfowl hunters and law enforcement 
officers, we believe that information on suitable testing devices is a 
useful addition to the table.

Affected Environment

Waterfowl Populations

    The taxonomic family Anatidae, principally subfamily Anatinae 
(ducks) and their habitats, comprise the affected environment. 
Waterfowl habitats and populations in North America in 2005 were 
described by the U.S. Fish and Wildlife Service (Garrettson et al. 
2005). In the Waterfowl Breeding Population and Habitat Survey 
traditional survey area (strata 1-18, 20-50, and 75-77), the total duck 
population estimate was 31.7 <plus-minus> 0.6 [SE] million birds, 
similar to last year's estimate of 32.2 <plus-minus> 0.6 million birds 
but 5% below the 1955-2004 long-term average. Mallard (Anas 
platyrhynchos) abundance was 6.8 <plus-minus> 0.3 million birds, which 
was 9% below the 2004 estimate of 7.4 <plus-minus> 0.3 million birds 
and 10% below the long-term average. Blue-winged teal (Anas discors) 
abundance was 4.6 <plus-minus> 0.2 million birds, similar to the 2004 
estimate of 4.1 <plus-minus> 0.2 million birds, and the long-term 
average. Of the other duck species, the gadwall estimate (Anas 
strepera; 2.2 <plus-minus> 0.1 million) was 16% below that of 2004, 
while estimates of northern pintails (Anas acuta; 2.6 <plus-minus> 0.1 
million; +17%) and northern shovelers (Anas clypeata; 3.6 <plus-minus> 
0.2 million; +28%) were significantly above their 2004 estimates. The 
estimate for northern shovelers was 67% above the long-term average for 
the species, and the estimates for gadwall (+30%) and green-winged teal 
(Anas crecca; 2.2 <plus-minus> 0.1 million; +16%) also were above their 
average values. Northern pintails remained 38% below their long-term 
average despite this year's increase in abundance. Estimates of 
American wigeon (Anas americana; 2.2 <plus-minus> 0.1 million; -15%) 
and scaup (Aythya affinis and Aythya marila combined; 3.4 <plus-minus> 
0.2; -35%) also were below their respective long-term averages; the 
estimate for scaup was a record low. Abundances of redheads (Aythya 
americana) and canvasbacks (Aythya valisineria) were similar to last 
year's counts and long-term averages. The projected mallard fall flight 
index of 9.3 <plus-minus> 0.1 million was similar to the 2004 estimate 
of 9.4 <plus-minus> 0.1 million birds.
    In the restratified eastern survey area, mergansers (Mergus 
serrator, M. merganser, and Lophodytes cucullatus together) were down 
25%, mallards were down 36%, American black ducks (Anas rubripes) were 
down 24%, and green-winged teal were 46% below their 2004 estimates. 
Ring-necked ducks (Aythya collaris) and goldeneyes (common [Bucephala 
clangula] and Barrow's [Bucephala islandica]) were similar to their 
2004 estimates. No species in the eastern survey area differed from its 
long-term average.

Habitats

    Waterfowl hunting occurs in habitats used by many taxa of migratory 
birds, as well as by aquatic invertebrates, amphibians and some 
mammals. Fish also may be found in many hunting locations. The total 
May pond estimate (Prairie and Parkland Canada and the northcentral 
U.S. combined) was 5.4 <plus-minus> 0.2 million ponds, which is 37% 
greater than the 2004 estimate of 3.9 <plus-minus> 0.2 million ponds 
and 12% higher than the long-term average of 4.8 <plus-minus> 0.1 
million ponds. The 2005 pond estimate in Prairie and Parkland Canada 
was 3.9 <plus-minus> 0.2 million, a 56% increase relative to last 
year's estimate of 2.5 <plus-minus> 0.1 million ponds and 17% higher 
than the long-term average of 3.3 <plus-minus> 0.3 million ponds. The 
2005 pond estimate for the northcentral U.S. (1.5 <plus-minus> 0.1 
million) was similar to last year's estimate.

Characterization of the Four Shot Types

TICN Alloys

    Spherical Precision, Inc. of Tustin, CA, submitted Tungsten-Iron-
Copper-Nickel (TICN) shot for approval. This is an array of layered 
alloys or metals of 40-76 percent tungsten, 10-37 percent iron, 9-16 
percent copper, and 5-7 percent nickel. TICN shot has a density ranging 
from 10.0 to 14.0 grams per cubic centimeter (g/cm<SUP>3</SUP>), is 
noncorrosive, and is magnetic. Spherical Precision estimates that the 
volume of TICN shot for use in hunting migratory birds in the United 
States will be approximately 50,000 pounds (lb) (22,700 kilograms (kg)) 
during the first year of sale, and perhaps 100,000 lb (45,400 kg) per 
year thereafter.

ITN Alloys

    ENVIRON-Metal of Sweet Home, OR, submitted Iron-Tungsten-Nickel 
(ITN) alloys, which are cast alloys containing 10-70 percent iron, 20-
70 percent tungsten, and 10-40 percent nickel. The proposed shot types 
have densities ranging from about 8.5 to about 13.5 g/cm<SUP>3</SUP>. 
The compositions of the alloys were shown in the proposed rule (70 FR 
49541).
    ENVIRON-Metal estimated that the yearly volume of ITN shot types 
with densities between those of steel (7.86 g/cm<SUP>3</SUP>) and lead 
(11.3 g/cm<SUP>3</SUP>) expected for use in hunting migratory birds in 
the United States is approximately 200,000 lb (113,500 kg) during the 
first year of sale. In the second year and beyond, sales upwards of 
500,000 lb (227,000 kg) per year are anticipated. ITN shot types with 
densities greater than that of lead may ultimately attain sales levels 
of 1,000,000 lb (454,000 kg) per year.

TB Shot

    The Olin Corporation of East Alton, IL, submitted Tungsten-Bronze 
(TB) shot for approval. This is a sintered

[[Page 4296]]

composite with an average composition of 60 percent tungsten, 35.1 
percent copper, 3.9 percent tin, and 1 percent iron. The copper and tin 
make up 39 percent of the shot as a 90:10 ratio, respectively, in the 
form of a bronze alloy. The shot has a density of 12.0 g/
cm<SUP>3</SUP>, compared to 11.1-11.3 g/cm<SUP>3</SUP> for lead, and 
7.9 g/cm<SUP>3</SUP> for steel. Olin estimated that the yearly volume 
of the TB shot in hunting migratory birds in North America will be 
approximately 300,000 lb (136,200 kg).

TTI Shot

    Tungsten-Tin-Iron (TTI) shot, submitted by Nice Shot, Inc., of 
Albion, PA, is a cast alloy composed of 58 percent tungsten, 38 percent 
tin, and 4 percent iron. This shot type has a density of 11.0 g/
cm<SUP>3</SUP>. Nice Shot, Inc. estimated that approximately 5,000 lb 
(2,270 kg) of TTI shot are expected to be sold for use in hunting 
migratory birds in the United States during the first year of sale. TTI 
shot contains less than 1 percent lead, and will not be coated.
    Each of the four shot types has a residual lead level of less than 
1 percent. To inhibit corrosion, TICN shot may be coated with tin, 
copper, or both, and ITN shot may be surface-coated with thin 
petroleum-based films. Neither TB nor TTI shot will be coated.
    In current 50 CFR 20.21(j)(1), the percent composition by weight 
for tunsten-tin-bismuth is ``49-71 tungsten, 29-51 tin; 0.5-6.5 
bismuth, 0.8 iron''. The proposed rule presented this same formulation. 
However, because we have already approved shot types of 100 percent of 
each of these metals, we now approve any alloys of them. Therefore, the 
rule text now reflects that the percent composition by weight for 
tungsten-tin-bismuth alloys is now ``any proportions of tungsten, tin, 
and bismuth''.

Effects of the Approvals on Migratory Waterfowl

    Approving additional nontoxic shot types will likely result in a 
minor positive long-term impact on waterfowl and wetland habitats. 
Approval of the four shot types and additional alloys as nontoxic would 
have a positive impact on the waterfowl resource.

Cumulative Impacts

    We foresee no negative cumulative impacts of approval of the four 
shot types and the additional alloys for waterfowl hunting. Their 
approval should help to further reduce the negative impacts of the use 
of lead shot for hunting waterfowl and coots.

Literature Cited

Anderson, W. L., S. P. Havera, and B. W. Zercher. 2000. Ingestion of 
lead and nontoxic shotgun pellets by ducks in the Mississippi 
flyway. Journal of Wildlife Management 64:848-857.
Garrettson, P. R., T. J. Moser, and K. Wilkins. 2005. Waterfowl 
population status, 2005. U.S. Fish and Wildlife Service, Washington, 
D.C.

NEPA Consideration

    In compliance with the requirements of section 102(2)(C) of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the 
Council on Environmental Quality's regulations for implementing NEPA 
(40 CFR parts 1500-1508), though all of the metals in these shot types 
have been approved in other shot types and are not likely to pose 
adverse toxicity effects on fish, wildlife, their habitats, or the 
human environment, we have completed Final Environmental Assessments 
and found no significant environmental impact from this action.

Endangered Species Act Considerations

    Section 7 of the Endangered Species Act (ESA) of 1972, as amended 
(16 U.S.C. 1531 et seq.) provides that Federal agencies shall ``insure 
that any action authorized, funded or carried out * * * is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of (critical) habitat.'' We have concluded that because all of the 
metals in these shot types have been approved in other shot types and 
will not be released to the environment (dissolved from the shot) by 
any of them, the metals will not be available to biota in significant 
amounts due to use of any of the four shot types. Therefore, this 
action will not affect endangered or threatened species.

Executive Order 12866

    This rule is not a significant regulatory action subject to Office 
of Management and Budget (OMB) review under Executive Order 12866. This 
rule will not have an annual economic effect of $100 million or more or 
adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. Therefore, a cost-benefit 
economic analysis is not required. This action will not create 
inconsistencies with other agencies' actions or otherwise interfere 
with an action taken or planned by another agency. No other Federal 
agency has any role in regulating nontoxic shot for migratory bird 
hunting. The action is consistent with the policies and guidelines of 
other Department of the Interior bureaus. This action will not 
materially affect entitlements, grants, user fees, loan programs, or 
the rights and obligations of their recipients because it has no 
mechanism to do so. This action will not raise novel legal or policy 
issues because the Service has already approved several other nontoxic 
shot types.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires the preparation of flexibility analyses for rules that will 
have a significant economic impact on a substantial number of small 
entities, which include small businesses, organizations, or 
governmental jurisdictions. This rule approves four additional types of 
nontoxic shot that may be sold and used to hunt migratory birds. We 
have determined, however, that this rule will have no effect on small 
entities since the approved shot merely will supplement nontoxic shot 
types already in commerce and available throughout the retail and 
wholesale distribution systems. We anticipate no dislocation or other 
local effects, with regard to hunters and others.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule will not have 
an annual effect on the economy of $100 million or more; will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Paperwork Reduction Act

    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. We have examined this regulation 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501) and found it 
to contain no new information collection requirements. OMB has assigned 
control number 1018-0067 to the collection of information that shot 
manufacturers are required to provide to us for the nontoxic shot 
approval process. This approval expires December 31, 2006. For further 
information, see 50 CFR 20.134.

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Unfunded Mandates Reform

    We have determined and certify pursuant to the Unfunded Mandates 
Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not 
significantly or uniquely affect small governments or produce a Federal 
mandate of $100 million or more in any given year. Therefore, this rule 
does not constitute a significant regulatory action under the Unfunded 
Mandates Reform Act.

Civil Justice Reform--Executive Order 12988

    In promulgating this rule, we have determined that these 
regulations meet the applicable standards provided in Sections 3(a) and 
3(b)(2) of Executive Order 12988.

Takings

    In accordance with Executive Order 12630, this rule, authorized by 
the Migratory Bird Treaty Act, does not have significant takings 
implications and does not affect any constitutionally protected 
property rights. This rule will not result in the physical occupancy of 
property, the physical invasion of property, or the regulatory taking 
of any property. A takings assessment is not required.

Federalism Effects

    This rule does not have a substantial direct effect on fiscal 
capacity, change the roles or responsibilities of Federal or State 
governments, or intrude on State policy or administration. In 
accordance with Executive Order 13132, this regulation does not have 
significant federalism effects, nor does it have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we have determined that this 
rule has no effects on Federally recognized Indian tribes.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

0
For the reasons discussed in the preamble, we amend part 20, subchapter 
B, chapter I of Title 50 of the Code of Federal Regulations as follows:

PART 20--[AMENDED]

0
1. The authority citation for part 20 continues to read as follows:

    Authority: 16 U.S.C. 703-712; 16 U.S.C. 742a-j; Pub. L. 106-108.


0
2. Section 20.21 is amended by revising paragraph (j) to read as 
follows:


Sec.  20.21  What hunting methods are illegal?

* * * * *
    (j) While possessing loose shot for muzzle loading or shotshells 
containing other than the following approved shot types.

------------------------------------------------------------------------
                               Percent composition  Field testing device
    Approved shot type *            by weight                **
------------------------------------------------------------------------
bismuth-tin.................  97 bismuth, 3 tin...  HOT*SHOT[reg]. ***
iron (steel)................  iron and carbon.....  Magnet or
                                                     HOT*SHOT[supreg].
iron-tungsten...............  any proportion of     Magnet or
                               tungsten, >=1 iron.   HOT*SHOT[supreg].
iron-tungsten-nickel........  >=1 iron, any         Magnet or
                               proportion of         HOT*SHOT[supreg].
                               tungsten, up to 40    **
                               nickel.
tungsten-bronze.............  51.1 tungsten, 44.4   Rare Earth Magnet.
                               copper, 3.9 tin,
                               0.6 iron and 60
                               tungsten, 35.1
                               copper, 3.9 tin, 1
                               iron.
tungsten-iron-copper-nickel.  40-76 tungsten, 10-   HOT*SHOT[supreg] or
                               37 iron, 9-16         Rare Earth Magnet.
                               copper, 5-7 nickel.
tungsten-matrix.............  95.9 tungsten, 4.1    HOT*SHOT[supreg].
                               polymer.
tungsten-polymer............  95.5 tungsten, 4.5    HOT*SHOT[supreg].
                               Nylon 6 or 11.
tungsten-tin-iron...........  any proportions of    Magnet or
                               tungsten and tin,     HOT*SHOT[supreg].
                               >=1 iron.
tungsten-tin-bismuth........  any proportions of    Rare Earth Magnet.
                               tungsten, tin, and
                               bismuth..
tungsten-tin-iron-nickel....  65 tungsten, 21.8     Magnet.
                               tin, 10.4 iron, 2.8
                               nickel.
------------------------------------------------------------------------
* Coatings of copper, nickel, tin, zinc, zinc chloride, and zinc chrome
  on approved nontoxic shot types also are approved.
** The information in the ``Field Testing Device'' column is strictly
  informational, not regulatory.
*** The ``HOT*SHOT'' field testing device is from Stream Systems of
  Concord, CA.

* * * * *

    Dated: January 13, 2006.
Paul Hoffman,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-745 Filed 1-25-06; 8:45 am]
BILLING CODE 4310-55-P